BOR-4-07-RR:BSTC:CCI 116521 CK
Mr. Kent N. Kirkham
Export-Import Compliance
Westinghouse Legal Group
Westinghouse Electric Company
P.O. Box 355
Pittsburgh, PA 15230-0355
RE: Traveller™; Instrument of International Traffic; 19 USC 1322(a);
19 CFR 10.41a.
Dear Mr. Kirkham:
This is in response to your ruling request dated June 15, 2005 sent to the National Commodity Specialist Division in New York. Your request was forwarded to our branch for reply.
FACTS:
Westinghouse Electric Company (WEC) manufacturers fuel used in commercial nuclear power electric generating plants. A new WEC nuclear fuel assembly contains a Type A quantity of fissile radioactive material, and is a hazardous material regulated by the Department of Transportation (DOT).
WEC has recently undertaken development of a new nuclear fuel transport package for pressurized water reactor fuel assemblies in response to evolving regulatory requirements. The new package is designated as the Traveller™. Each Traveller™ package is designed to hold one nuclear fuel assembly, or alternatively, loose fuel rods within an inner package called a rod box or rod pipe. The package exists in two styles, standard and XL. The primary difference in the two styles is the overall length of the package.
The U.S. Nuclear Regulatory Commission (NRC) defines the requirements and testing for Type A fissile packages in 10 CFR Part 71. The NRC issued a Certificate of Compliance for the Traveller™ on March 17, 2005. The DOT then issued a Competent Authority Certificate authorizing use of the package on March 28, 2005.
The nuclear fuel transport package has two currents. The primary use of the package involves delivery of nuclear fuel assemblies to both domestic and foreign customers. Foreign customers who currently purchase the type of nuclear fuel for which the Traveller™ package is designed are in France, Taiwan, Slovenia, Ukraine, South Africa, and the Czech Republic.
A typical nuclear fuel export shipment will require use of 56 Traveller™ fuel containers, although shipment container counts can range from 42 to 64. WEC exports about six nuclear fuel shipments each year at current business levels.
When shipping to foreign customers, the Traveller™ packages will be loaded on intermodal flat rack containers. The Traveller™ packages will be secured to the intermodal flat racks using chains and chain tensioners (“binders”) routed through the leg sub-assemblies at each end of the Traveller™ package, and with soft web type straps with integral metal ratchet tighteners passed over the top of the packages. The intermodal flat rack containers will be delivered by highway to the U.S. port of export. Ports of export include, but are not limited to, Norfolk, Portsmouth and Newport News in Virginia, Savannah, Georgia and Oakland, California. The intermodal flat rack containers bearing the Traveller™ containers will then be transported by ship to the foreign port of import, and subsequently by highway to the foreign nuclear electric generating plant.
After customers unload the nuclear fuel assemblies from the Traveller™ packages, the empty Traveller™ packages will be returned by ship to the United States port of import and finally delivered back to the factory by highway. The packages will be reused for other shipments, both domestic and foreign, after undergoing inspection and any necessary refurbishment.
A secondary use of the package is the shipment of loose fuel rods. WEC currently purchases specialized nuclear fuel rods from Westinghouse Electric Sweden AB (WSE), a sister company. The specialized nuclear fuel rods contain integral neutron absorbing materials. Including such fuel rods into fuel assemblies permits additional control over the burn-up rate of the fissionable uranium in the fuel assembly. WSE also owns a fleet of Traveller™ packages which were manufactured in the United States.
In the less common transaction, described above, the Traveller™ packages containing the loose fuel rods will arrive at U.S. East Coast ports by sea, loaded on intermodal flat rack containers. The fuel rods will be subject to a normal consumption entry, and the intermodal flat rack containers will be moved by highway to a WEC factory. After removing the loose fuel rods from the Traveller™ packages, the empty packages will be returned to Sweden, again using intermodal flat rack containers shipped by sea.
The Traveller™ package consists of three components: 1) an outerpack; 2) a clamshell; and 3) a fuel assembly or red container.
The outerpack is a structural component that serves as the primary impact and thermal protection for the fuel assembly or rod container. The outerpack has a long horizontal tubular design consisting of a top and bottom half. At each end of the package are thick limiters consisting of two sections of foam of different densities sandwiched between three layers of sheet metal. The impact limiters are integral parts of the outerpack and reduce damage to the contents during an end, or high-angle drop. The outerpack also provides for the lifting, stacking, and tie down during transportation. Each Traveller™ package is equipped with 2 forklift pockets to facilitate forklift handling.
The clamshell is a horizontal structural component that serves to protect the contents during routine handling and in the event of an accident. The clamshell consists of an aluminum “v” extrusion, two aluminum door extrusions, and a small access door. Neutron absorber plates are installed in each leg of the “v” extrusion and in each of the doors, which are connected to the extrusion by hinges. The “v” extrusion and the bottom plat are lined with a cork rubber pad to cushion and protect the contents during normal handling and transport conditions.
The clamshell is mounted within the outerpack by use of rubber shockmounts to isolate the fuel assembly from the vibration and impacts. The clamshell part of the package exerts a clamping force on the nuclear fuel assembly to ensure that the fuel assembly does not move within the package.
The principal materials of the package consist of the stainless steel outerpack, polyethylene foam, and aluminum. When loaded the total gross weight of the standard Traveller™ package will range from 3,912 to 4,432 pounds. The total gross weight of a loaded XL Traveller™ will range from 4,818 to 4,938 pounds.
WEC currently has 240 standard Traveller™ containers either delivered or on order, and have 171 XL Traveller™ containers either delivered or on order. WEC expects to have a total fleet of approximately 700 Traveller™ containers. WEC has no intent to re-sell either type of Traveller™ container.
The design life of the Traveller™ package is thirty years. The actual service life of the existing older design now exceeds 30 years.
ISSUE:
Whether the Traveller™ packages described above may be designated as instruments of international traffic within the meaning of 19 U.S.C. §§ 1322(a) and 10.41a, CBP regulations (19 CFR 10.41a)?
LAW AND ANALYSIS:
Title 19, United States Code, section 1322(a) (19 U.S.C. 1322(a)), provides in pertinent part that “[v]ehicles and other instruments of international traffic…shall be excepted from the application of the customs laws to such extent and subject to such terms and conditions as may be prescribed in regulations….” The CBP regulations issued under the authority of section 322(a) are contained in section 10.41a (19 CFR 10.41a). Section 10.41a(a)(1) specifically designates lift vans, cargo vans, shipping tanks, skids, pallets, caul boards, and cores for textile fabrics as instruments of international traffic.
Section 10.41a(a)(1) also authorizes the Commissioner of CBP to designate other items as instruments of international traffic in decisions to be published in the weekly Customs Bulletin. Once designated as instruments of international traffic, these items may be released without entry or the payment of duty, subject to the provisions of section 10.41a.
To qualify as an “instrument of international traffic” (IIT) within the meaning of 19 U.S.C. section 1322(a) and the regulation promulgated pursuant thereto (19 CFR 10.41 et seq.), an article must be used as a container or holder. The article must be substantial, suitable for and capable of repeated use, and used in significant numbers in international traffic. (See, subheading 9803.00.50, Harmonized Tariff Schedule of the United States Annotated (HTSUSA), and former Headnote 6(b)(ii), Tariff Schedule of the United States (TSUS), as well as Headquarters Decisions 104766; 108084; 108658; 109665; and 109702).
The concept of reuse contemplated above is for commercial shipping or transportation purposes, and not incidental or fugitive uses. Tariff Classification Study, Sixth Supplemental Report (May 23, 1963) at 99. See Holly Stores, Inc. v. United States, 697 F.2d 1387 (Federal Circuit, 1982).
In HQ 116240, dated July 23, 2004, CBP held that steel film frames and plastic containers used to ship integrated circuit dies are IITs. In HQ 116047, dated December 1, 2003, CBP held that collapsible steel racks that hold automobile transmissions within ocean containers are IITs. In HQ 115503, dated May 30, 2000, we held that hard plastic boxes used to ship integrated circuit wafers qualified as IITs. In HQ 114506, dated October 29, 1998, it was determined that containers made of plastic known as totes that were used to ship various small automobile replacement parts from Japan to the United States met the requirements necessary for designation as IITs. In HQ 112534, dated January 25, 1993, it was held that reusable plastic boxes designed to transport automotive strut components qualified as IITs.
We have held that articles which consist of pallets and tops, plastic outer rings, plastic and cardboard pads, and form trays used to transport ceramic logs qualified as IITs when these parts were assembled together. See, HQ 115108, dated August 24, 2000. Most recently, CBP has held that corrugated cardboard and winding coils upon which steel is rolled qualify as IITs. See, HQ 116045, dated October 23, 2003.
In this case, the Traveller™ is of such substantial construction that it has an estimated lifespan of at least 30 years. The Traveller™ will be used in shipments approximately 6 times a year and each shipment will include between 42 and 56 Traveller™ packages. There are over 400 Traveller™ packages in use, with hundreds more to be acquired. Based on the above described criteria and the pictures submitted showing the Traveller™ packages are substantial and durable, and over 400 packages will be used numerous times a year in international traffic, the Traveller™ packages meet the requisite criteria to qualify as IITs pursuant to 19 U.S.C. § 1322(a).
HOLDING:
The Traveller™ packages described above qualify as instruments of international traffic within the meaning of 19 U.S.C. §1322(a) and may be released pursuant to 19 CFR § 10.41a.
Sincerely,
Glen E. Vereb
Chief
Cargo Security, Carriers and Immigration Branch